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zenship of different states, military system. These are the powers which the different German states reserve to themselves the right to deal with, and, therefore, no treaty can be made concerning any of them without permission from the legislature. -In France, by article 9 of the constitution (Lois Constitutionelles, July 16, 1875), the president may declare offensive war with the consent of the legislature. By article 8, the president is to negotiate and ratify treaties alone, unless they involve questions of peace, commerce, finance, status of persons and rights of property of Frenchmen in foreign countries, cession of territory by or to France; in these cases the consent of the legislature is necessary. — In the United States the makers of the constitution tried a new method of enforcing a treaty by enacting, that all treaties should be considered as the supreme law of the land, and providing for their ratification by the senate. But another clause gives the house of representatives control over all foreign commerce and other matters often dealt with in treaties. By section 8 of article 1, of the constitution, "The congress shall have power-1. To lay and collect taxes, duties, imposts and excises ***; 3. To regulate commerce with foreign nations, and among the several states and with the Indian tribes; 4. To establish a uniform rule of naturalization ***; 10. To define and punish piracies and felonies committed on the high scas, and offenses against the law of nations." Now, these are all of them matters also dealt with in treaties which are to be entered into and ratified (by section 2 of article 2) by the president, "by and with the advice and consent of the senate, provided two-thirds of the senators present concur." And such treaties are also, by the constitution, to have the same force and effect as if they were the supreme law of the land. The treaties on the above and other subjects often, therefore, in their provisions, come into conflict with the laws of congress, especially with those in connection with commercial subjects, which usually spring from the house of representatives, and an interesting series of questions has in consequence been brought before our courts. To take one recent case out of many. By article 4 of a treaty between the United States of America and his majesty the king of Denmark, concluded at Washington, April 26, 1826, and thereafter duly ratified and proclaimed, and renewed by article 5 of the treaty entitled "Convention between the United States

of America and his Majesty the King of Denmark, for the discontinuance of the Sound Dues," concluded at Washington, April 11, 1857, and thereafter duly ratified by the senate, and proclaimed, and which is still in full force and effect, it is provided that: "No higher or other duties shall be imposed on the importation into the United States of any article, the produce or manufacture of the dominions of his majesty the king of Denmark, **than are or shall be payable on the like articles, being the produce or manufacture of any other foreign country." By article 1 of the treaty entitled "Convention between the United States

of America and his Majesty the King of the Hawaiian Islands," concluded at Washington, Jan. 30, 1875, and thereafter duly ratified and proclaimed on the part of the United States, and to carry which into effect the necessary law has been duly passed (Aug. 15, 1876) by the congress of the United States, and which is still in full force and effect, it is provided as follows: "The United States of America hereby agree to admit all the articles named in the following schedule, the same being the growth and manufacture, or produce, of the Hawaiian islands, into all the ports of the United States, free of duty." The schedule fo lowing said article includes: Muscovado, brown and all other unrefined sugars," of grades therein mentioned, and all "syrups of sugar-cane, melado and molasses.' Certain merchants having imported such goods from Denmark, claimed that the aforesaid articles imported were, under and by virtue of the aforesaid treaty with Denmark, entitled to be admitted into this port free from the payment of any duty whatsoever, for the reason that "like articles, being the produce or manufacture of (any) a foreign country," to wit, the Hawaiian islands, are, pursuant to the treaty with that country, admitted into all the ports of the United States free of duty. The collector of New York collected duties on the goods, and the merchants, having paid under protest, brought suit against the collector to recover the money. Judge Wallace, in the United States circuit court, de cided in favor of the collector, chiefly on the ground, apparently, that congress may annul or repeal a treaty, as far as it is municipal law, provided its subject matter be, under the constitution, within the legislative jurisdiction of congress, and that in this case there had been such a repeal of the clause in question by implication, by the tariff legislation of congress. As Judge Curtis says, "If an act of congress should levy a duty upon imports, which an existing commercial treaty declares shall not be levied, so that this treaty is in conflict with the act," the later act of congress "gives the rule of decision in a judicial tribunal of the United States, in a case to which one rule or the other must be applied." This rule is well established, now, in our courts. See other cases, such as, Ropes vs. Clinch, 8 Blatchford, 304; Cherokee Tobacco, 11 Wall, 616; Gray vs. Clinton Bridge, Woolworth, 150. Take another case, one analogous to which has recently arisen: Suppose the United States, by treaty with another country, takes away from its own residents or citizens, in certain cases, some constitutional right, such as trial by jury; are the American courts in those cases estopped by the treaty from seeing that such right is not withheld from those under its jurisdiction? The other country would prob ably expect us to fulfill our treaty, but the courts would probably hold that even the supreme law of the land was to be governed by our constitution. These considerations lead us to the last division of our subject, the enforcement of treaties and the growth of the powers of courts of justice in that

regard. — Enforcement of Treaties. The following distinctions may perhaps be usefully made in connection with this part of the subject. After the sovereign or supreme power of a state has entered into a treaty obligation, its fulfillment or enforcement usually comes under the jurisdiction | and control of the sovereign or head of the nation himself, by or with the aid of one of three powers of the land: 1, the legislature or council of state; 2, the army and navy department; or, 3, the law and courts of justice of the country. Consequently, while the different obligations of treaties are theoretically enforceable by the nation itself, they may for practical purposes be said to be under the control of one of the above mentioned departments. The executive and legislative branches have control of such clauses in treaties as deal with peace or war, cession of territory or of money, of guarantee, neutrality or intercourse. The head of the army or navy in action is almost wholly in charge of the humane and moral clauses of modern treaties, such as those which deal with aid to the wounded, etc.; and of truces and cartels, and other laws of war, and of railroad and telegraph or cable treaties, so far as the war clauses are concerned. The judicial power is responsible for the carrying out of naturalization and extradition treaties, commercial engagements, the laws of prizes, some of the effects of treaties concerning war and peace, such as the rights of seizure, embargo, blockade, etc., and the clauses of treaties which affect the rights of citizens and foreigners in their individual and private capacity.-The distinction as to what classes of treaties come before the courts, is pointed out by the late Chief Justice Marshall, in the case of Foster vs. Neilson (2 Peters, 314): "Our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department, and the legislature must execute the contract before it can become a rule for the court. This seems to be the language of contracts, and if it is, the ratification and confirmation which are promised must be the act of the legislature. Until such act shall be passed, the court is not at liberty to disregard the existing laws on the subject.' That is, a treaty is a contract, and before the courts can accept a treaty as the supreme law of the land, for them to enforce, it must, by the action of congress, be changed from a contract into a law, unless, as another judge says, "the treaty itself gives a rule of law in respect to pri- | vate rights, capable of execution without the aid of further legislation, and operating directly upon the interest which is the subject of the judicial inquiry.' And if the treaty does not come within either of these rules, that must be decided by the courts, too; therefore, especially in this coun

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try, the power of the courts, whether used positively or negatively, in the enforcement of treaties and their obligations, is very great. — In Ware vs. Hylton, 3 Dallas, 199, certain Virginians owed money to some Englishmen in 1774. In 1777 the legislature passed a law to sequester British property, providing that Virginian citizens owing money to English subjects might pay the same to the Virginian government and get a discharge for their debt. The debtors in this case took advantage of this act. In 1783 a treaty was entered into between the United States and Great Britain, by the fourth clause of which it was agreed "that creditors on either side shall meet with no legal impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted." The supreme court held, reversing the decision of the lower court, that the treaty of the United States annulled the law of Virginia, and gave the right to the Englishmen to recover their debt. In the case of the United States vs. The Schooner Peggy, 1 Cranch, 103, a French ship had been captured and condemned as a prize by the United States circuit court of Connecticut in 1800. A writ of error was prosecuted to the supreme court, and before the hearing a treaty was entered into between the United States and France, one of the clauses of which was to the effect that property captured and not yet definitely condemned should be mutually restored. The court held that the sentence of the circuit court was not definitive, and ordered the prize to be restored. The court said: "In mere private cases between individuals a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties; but in great national concerns, where individual rights acquired by war are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import."- Chirac vs. Chirac, 2 Wheaton, 112, is a decision as to the effect of treaties on the title to real property, and decided, among other points, what we have already seen, that a treaty providing for the rights of subjects of one country, claiming lands by inheritance in another, is perpetual in its effect. If it expires by lapse of time, any right that has previously arisen in consequence of its existence is not extinguished by its expiration. “The treaty had its full effect the instant a right was acquired under it; it had nothing further to perform; and its expiration or continuance afterward was unimportant. - The United States vs. Watts, 14 Federal Reporter, 130, is an extradition case, where the United States had extradited the defendant for having committed one offense, tried him for it, and then proceeded to try him for another. The court discharged the prisoner, after examining both the executive and legal authorities on the question. Mr. Hamilton Fish, the secretary of state, had contended that the receiving power has the right, if so inclined, after having tried the extradited person on the charge on

intent and effort to convict him on that one charge, to try him for any other offense of which he may have been guilty. (Messages and Documents, Dep. of State, May, 1876.) Lord Derby denied this, and the United States court in this case agreed with Lord Derby, saying: "It results as a necessary consequence of the duty imposed on the courts to respect and obey the stipulations of a treaty as the supreme law of the land, that they are also charged with the duty of determining its meaning and effect, and this duty they must conscientiously and fairly perform, even though the construction they feel compelled to give to it should differ from that given to it by the political branch of the government."-The cases we have mentioned are typical instances from our reports as to how our courts have enforced various provisions of treaties, even against the apparent interests of their own country and countrymen, and many other similar cases might be cited, both from our own and from the European law reports. From the times of Sir Leoline Jenkins (1625-84) the English admiralty courts have been very determined, in prize cases, in seeing that justice was done in all cases where foreigners were concerned, even where the foreigners were allies of a hostile country. Sir William Scott, in maintaining, later, this tradition of his court, gave a great impetus to the enforcement of international law, especially in following and observing the treaty rights of neutral or other foreigners. We may note one instance, taken at random from the English reports, the case of The Fama, 5 Rob. inson, 106, which was as follows: In 1803 some goods in a ship sailing from New Orleans to Havre de Grace were seized by an English vessel, England then being at war with France. By the treaty of Idelfonso, 1796, Louisiana had been ceded to France. The New Orleans merchant claimed that the treaty was a secret treaty, and had not yet been carried into effect by the handing over of Louisiana to the French, wherefore it still remained a Spanish possession, and he should have restitution. Sir William Scott agreed to this view of the matter, and decided that the national character of a place agreed to be surrendered by treaty, but not actually transferred, continues as it was under the character of the ceding country, and ordered restitution by the English captors to the New Orleans merchant. All of which shows that the courts of law in civilized nations are the most effective enforcing agencies for treaties between nations, as for contracts between individuals, and that their jurisdiction is rapidly growing, and trenching on our next class. The next class of sanctions for treaties are those of the executive. They are to be employed where, as Livy says, 'they are made by the command of the supreme power, and whereby the whole nation is made diable to the wrath of God if they infringe it." And the wrath of God or the fear of man is still about all that causes their fulfillment when either country would rather break them. The jurists of

these national treaties could be enforced, and they have appealed, to a great extent in vain, to the better feelings and aspirations of monarchs and popular assemblies. The methods, other than physical force, employed by nations to enforce a treaty obligation, have been: 1. The performance, by way of ratification, of religious rites and ceremonies, or the use of threats or influence by officers of different religions. In ancient times all treaties were entered into with the most sacred religious rites, and if these or any other formalities were left out, the treaty was not considered binding. But this kind of sanction only caused an obedience to the letter of the treaty, as, to use an extreme instance, when Antiochus stipulated in a treaty to give up half his fleet to the Romans, and Labeo carried that clause into effect by sawing every ship belonging to the monarch into two. The power of religious threats in the enforcement of treaties has been best exemplified in the case of the Roman church. By the use of excommunications and interdicts that church often was able to cause international agreements to be carried into effect, when one side of those who had entered into the agreement endeavored to draw back; but the selfishness with which the church used this power, and the power it also claimed and exercised of releasing princes from treaty obligations, neutralized all the good effect on international morality it might otherwise have caused. The ratification of a treaty was a very solemn affair, transacted in some great cathedral, in the presence of all the pomp and power of the church and of the nations involved. The ambassadors who had drawn up the treaty would there in due form solemnly touch the cross, the holy evangels, and the holy letters, and swear by their honor to observe and carry out fully, really and in good faith all the articles that were contained in the treaty. (Peace of Munster, 1648.) The most modern example is perhaps the alliance between France and Switzerland in 1777, which was solemnly confirmed by the oath of the contracting parties in public in the cathedral of Soleure. The emperor of Germany was addressed always as semper Augustus; the king of France, as most Christian; the king of Spain, as most Catholic; the king of England, as defender of the faith; the king of Portugal, as most faithful; and the king of Hungary as his apostolic majesty. 2. The handing over of territory, money or hostages, as a pledge for the fulfillment of a treaty, was also a means much used in ancient times, and it was successful so far as it went. It has gradually fallen into disuse, except as regards the occupation of territory. The last occasion on which hostages were given, was at the treaty of Aix-laChapelle, in 1748. 3. There remain the methods by which third parties are made or become responsible for the carrying out of a treaty; such as armed intervention, mediation, arbitration or guarantee. These methods, leaving arbitration out of consideration, are found to be of little use at the

important questions discussed had reference to a definition of the privileges of fishermen, citizens of the United States, in the waters of British North America. Their right to fish on the Grand Banks or in the gulf of St. Lawrence, or elsewhere in the open sea, could not, of course, be denied, but it was claimed that they should not fish in British waters, or land in British territory to dry or cure their catch. At that time the methods of our fishermen were different from those now in use. The resources of our own coast were little understood, and the greater part of the New England fishing fleet resorted every summer to Labrador, Newfoundland, and the gulf of St. Lawrence, where they fished near the shores, making a harbor usually every night, always in threatening weather, and curing their fish upon the rocky shores, before loading them into the vessels for final home transportation. It was therefore important that they should retain as many as possible of the privileges enjoyed by them before the outbreak of the revolution. A compromise was finally agreed upon, and by the terms of article III. of the treaty of Paris (Sept. 3, 1783), it was arranged that the people of the United States should have liberty to fish on such parts of the coast of Newfoundland as British fishermen could, and also on the coasts, bays and creeks of all other of their Britannic majesties' dominions in America; and to dry and cure fish in the bays, harbors and creeks of Nova Scotia, the Magdalen islands and Labrador, so long as they were unsettled, or after their settlement if they could secure permission from the inhabitants or proprietors. By this treaty they were excluded simply from their former privilege of drying fish on the coasts of Newfoundland, Prince Edward island and Cape Breton. The war of 1812 suspended for a second time the privileges of our fishermen in British waters; and when the question of their readjustment was brought up, strong petitions were made by the British colonists against a renewal of the privileges of 1783. At the first meeting of the commissioners assembled at Ghent to draw up the articles of peace, it was announced "that the British government did not intend to grant to the United States gratuitously the privileges formerly granted for purposes connected with the fisheries." They argued that the claim of an immemorial and prescriptive right to these privileges was untenable, and that the rights which the inhabitants of the United States had possessed when British subjects, could not be continued to them after they had become citizens of an independent state. After much discussion the subject was dropped, and the treaty of Ghent (Dec. 24, 1814) contained no reference to the fishery question. The governors of the British colonies were now instructed to exclude our fishing vessels from their harbors and coasts, and the naval officers stationed in that district received orders to resist all encroachments. The result was the capture of several of our fishing vessels on the charge of trespassing in British waters. In 1818 commission

ers from the two countries met in London to settle amicably disputed points in connection with the fisheries, and their deliberations resulted in the signing of the convention of Oct. 20, 1818. By the terms of the first article of the convention it was provided that subjects of the United States should have forever the right to take fish of every kind on the southern, western and northern coasts of Newfoundland, on the shores of the Magdalen islands, and on that of Labrador, from Cape Jolly northward, and to dry and cure fish in any of the bays, harbors and creeks of these regions, except the Magdalens, so long as they should remain unsettled. The United States renounced any claim of right to take, dry or cure fish on or within three marine miles of any British territory not mentioned in the specifications above. American fishermen were, however, to be admitted to all harbors for shelter, repair of damages, purchasing wood or obtaining water. In order to secure the observance of this treaty our government issued to its fishermen a notice warning them against violation of the provisions of the first article of the above mentioned convention, a copy of which was annexed to the circular. In 1847, in consequence of a petition addressed to the queen by the Canadian parliament, negotiations were opened for the establishment of reciprocal free trade between the United States and Canada. In exchange for reciprocity in trade with the United States in all natural productions, such as fish, wheat, timber, etc., access was offered to the fisheries of all the colonies, except Newfoundland, which refused consent. Some years were consumed in fruitless effort, and it was not until June 5, 1854, that the reciprocity treaty was signed, the senate of the United States confirming it August 3. By this treaty the fishermen of the United States gained a right to fish on all the coasts of British North America, while British fishermen gained access to the waters of the United States north of Cape May (latitude 36°); the salmon and shad fisheries were reserved for the exclusive uses of the subjects of each country; certain rivers and mouths of rivers, to be determined by a commission to be appointed for that purpose, were also reserved. The treaty also contained numerous provisions to secure and regulate free trade in certain articles of commerce. The treaty was to remain in force for ten years, after which it could be terminated upon a year's notice by either party. The commission to designate the places reserved to each country occupied years in deliberations, the results of which were so insignificant that they do not deserve discussion in this connection. -The reciprocity treaty terminated March 17, 1866, in consequence of notice given by the United States, notwithstanding efforts on the part of Great Britain to secure its renewal. The provisions of the treaty of 1818 were now revived, and continued in force until 1871, a period of fifteen years, during which there were constant clashing and uncertainty. American fishermen were at once warned that their right to fish in British